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Full text of "Ofori v. Cara Operations Limited, Board of Inquiry, March 1981 BOI 126"

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R.S.O. 1970 c. 318, as amended 



MAR 2 7 I98t 


IN THE MATTER OF: The complaint, as amended, of Mrs. Margaret 
Ofori of Toronto, Ontario, alleging discrimination in employ- 
ment by the Cara Operations Limited, CN Tower, 55 York Street, 
Toronto, Ontario, contrary to paragraph 4(1 )(b) of the Ontario 
Human Rights Code, R.S.O. 1970, c. 318, as amended. 

Professor Frederick H. Zemans 


Ms. Janet Minor Ministry of 

Counsel for 

Mr. D. Churchill-Smith, Q.C. Counsel for 
Mr. M. J. Adario 

the Attorney-General , 
the Ontario Human Rights 



Appointment 1 

Complaint 1 

Facts 3 

Summary of Facts and Conclusion 13 


1 . Appointment 

On April 15, 1980, I was appointed by the Honourable Robert 
Elgie, Minister of Labour, as a Board of Inquiry under the Ontario Human 
Rights Code to hear and decide the complaint of Ms. Margaret Ofori of 
Toronto, Ontario, alleging discrimination in employment by Cara Operations 
Limited, CN Tower, 55 York Street, Toronto, Ontario. 

On August 12th and 13th, 1980, a hearing was held in the City 
of Toronto, at the County Court House, 361 University Avenue. Ms. Janet 
Minor appeared as counsel for the Ontario Human Rights Commission and 
Messrs. D. Churchi 1 1 -Smi th , Q.C. and M. J. Adario appeared as counsel for 
Cara Operations Limited. 

2. The Complaint 

On July 23, 1979, Ms. Margaret Ofori attended at the offices 
of the Ontario Human Rights Commission at 400 University Avenue in Toronto, 
and there filed a complaint alleging discrimination in employment because 
of her nationality, ancestry and place of origin against Cara Operations 
Limited, its servants and agents, at the CN Tower, 55 York Street, Toronto. 
This complaint alleges a violation of s .4(1 ) (b) of the Ontario Human 
Rights Code and was introduced and filed as an exhibit at the Board of 

The Ontario Human Rights Code, s.4(l)(b) provides: 
"4.(1 ) No person shall , 

(b) dismiss or refuse to employ or to continue to 

employ any person; because of race, creed, colour, 
age, sex, marital status, nationality, ancestry, 
or place of origin of such person or employee." 
An amended complaint against the same respondent was signed by 
the complainant on March 24, 1980 alleging discrimination in employment on 
the additional grounds of race and colour. The amended complaint was 
introduced and filed as an exhibit at the Board of Inquiry. Counsel agreed 

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that paragraph one of the particulars of discrimination in the complaint 
of March 24, 1980 should be amended to read March 1977 rather than 1976, 
and that paragraph two should be amended from Tuesday, July 9th to Tues- 
day, July 10th and Wednesday, July 10th to Wednesday, July 11th, 1979. 

It is necessary at the outset to make several observations: 

(1) Although the complaint dealt with the termination of employ- 
ment of Ms. Ofori, it was necessary for the Board of Inquiry to consider 
the relationship of the complainant to Cara Operations and its employees 
during the two year period that she worked full-time and part-time for 
Cara Operations at the CN Tower. Although it was open to me under the 
Statutory Power Procedure Act, S.O. 1971, chapter 47, to have ruled in- 
admissable all evidence other than that directly relating to the issue 
set forth in the complaint, that is in relation to termination of employ- 
ment, I chose not to do so to enable the Board to have a complete picture 
of the situation that existed at the CN Tower from the time that Ms. Ofori 
commenced work until her employment was terminated. It is my opinion that 
such a full hearing was necessary for the Board to ascertain whether the 
ultimate termination did contravene the Ontario Human Rights Code and 
that such a full hearing was in keeping with the general practice of 
Boards of Inquiry established in similar circumstances. 

(2) Another reason for allowing a full hearing of all the evidence 
with respect both to the relationship of the complaint and Cara Operations 
and to the employment practices of Cara Operations is the difficulty of 
the determination that this Board has to make. The responsibility of an 
inquiry board investigating discrimination has been discussed by Professor 
Stephen Borins as he then was in Linda Kennedy v. Mohawk College where he 

"Discrimination on the grounds of race or colour is 
frequently practised in a very subtle manner. Overt 
discrimination on these grounds is not present in every 
discriminatory situation or occurrence. In a case 
where direct evidence of discrimination is absent, it 
becomes necessary for the Board to infer discrimination 

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from the conduct of the individual or individuals 
whose conduct is in issue. This is not always an 
easy task to carry out. 

"The conduct alleged to be discriminatory must be 
carefully analyzed and scrutinized in the context 
of the situation in which it arises. In my view, 
such conduct to be found discriminatory must be 
consistent with the allegation of discrimination 
and inconsistent with any other rational explanation. 
This, of course, places an onus on the person or 
persons whose conduct is complained of as discrimin- 
I atory to explain the nature and purpose of such 

conduct. It should also be added that the Board 
must view the conduct complained of in an objective 
manner and not from the subjective viewpoint of the 
person alleging discrimination whose interpretation of 
impugned conduct may well be distorted because of 
innate personality characteristics, such as a high 
degree of sensitivity or defensiveness . " 

3. The Facts 

The complainant is a 28 year old, married woman with one child. 
She was born in Ghana, West Africa. She moved to West Germany in 1972, 
where she lived for 4-1/2 years, until moving to Canada in 1976. Ms. Ofori 
presently lives in Toronto. 

There were discrepancies between Ms. Ofori' s testimony at the 
hearing and the form which she completed when she applied to Cara Operations 
for employment in regard to her previous employment. Since nothing turns 
on these discrepancies, in my opinion, I do not make any finding of fact as 
to the complainant's previous employment. 

Cara Operations Limited is a mul ti -di vi sional company operating 
essentially in the food and beverage industry from coast to coast and employing 

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over 8,000 employees. Cara Operations operates four divisions: the air- 
line services division; the air terminal restaurants division; the urban 
restaurants division; and the retail stores division. The retail stores 
division is responsible for the operation of the retail stores, including 
those at the CN Tower. Mr. Dennis Cook testified that Cara Operations 
has "virtually every race, nationality, religion, person of any kind of 
ethnic origin working for the company" (Evidence 289) and that the company 
made available employment opportunities for Vietnamese refugees in 1979. 

Ms. Ofori 's employment with Cara Operations began in March, 
1977 at the CN Tower location when she was hired by the then manager Ms. 
Cathy Summers as a full time cashier. Ms. Ofori indicated that she 
believed that she was liked by Ms. Summers and that they got on well. 
Ms. Anna Margarita Edstrom became manager of the retail sales division of 
Cara Operations at the CN Tower in October, 1978. 

In September, 1978 Ms. Ofori enrolled in courses at Humber 
College, Toronto, in an effort to up-grade her education. She continued 
her employment with Cara Operations, but as a result of her enrollment at 
Humber College she became a part-time employee working, on the average, 
about 20 hours per week. She usually worked the evening shift, beginning 
at 4:00 p.m. and finishing at 11:00 p.m. 

Ms. Ofori would begin a typical day at the CN Tower by check- 
ing her schedule to ascertain at which of the several locations she would 
be working. Cara Operations maintained a policy of rotating the location 
of employees among their various shops and cash registers in the CN Tower. 
Once Ms. Ofori knew her location, she would present herself there and 
relieve the previous cashier. She usually began her shift at 4:00 p.m. or 
slightly later when she was delayed at Humber College. Her supervisor 
accepted the fact that she would periodically be late arriving from school 
and would arrange for another cashier to work until Ms. Ofori arrived. 
Ms. Ofori wore a Cara uniform consisting of a jacket with two pockets and 
matching pants while working at the CN Tower. 

According to Ms. Ofori, her problems began when Ms. Edstrom 
was appointed as manager of the CN Tower. Ms. Ofori related an incident 

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in which Ms. Edstrom is alleged to have said that she did not think 
she could work with her, although they, in fact, worked together from 
the fall of 1978 until July of 1979. Ms. Ofori felt that Ms. Edstrom 
disliked her because she was a black African. That is indicated in the 
following testimony at page 17. 
Question : 

"Did you feel that she disliked you?" 


"Yes , she di si iked me. " 


"Did you tell her where you were born?" 


I "Yes, because one day her husband came there and they 

asked me and I told him that I lived in Germany, that 
I am an African from Ghana." 

Ms. Edstrom testified that she recalled a conversation with 
Ms. Ofori about the Tatter's nationality. According to Ms. Edstrom, the 
incident occurred on a Saturday or Sunday when Ms. Ofori mentioned that 
she had lived in Germany and continued on to say she was not born in 
Germany, but in Ghana. Ms. Edstrom says Ms. Ofori volunteered this in- 
formation to her and her husband. Ms. Edstrom testified that she per- 
ceived Ms. Ofori as a person who was very proud of her national origin 
who wished to indicate that she was of black African origin. She asserted 
her ethnic origin in numerous situations with other employees and was the 
^ source of some tension in her relations with other employees. Other 

employees testified to Ms. Ofori's alleged sensitivity to her colour and 
national ity. 

Ms. Theresa McGlenning, a 22 year old, part-time cashier, 
testified that there had been one occasion during her two year employment 
at the CN Tower when Ms. Ofori had offended her. The witness alleged that 
Ms. Ofori had claimed she was a better black person as she was a pure black 
from Africa and not an offspring of slavery like black Canadians and 

Americans. Another employee, Ms. Judy Cumberbatch, testified to a 
similar experience with Ms. Ofori . Ms. Ofori allegedly criticized, in 
Ms. Cumberbatch 's presence, black persons who straighten their hair 
saying that such a practice is an attempt by blacks to become part of 
the white society. The remark offended the witness as she is a black 
person who straightens her hair on occasion. Ms. Cumberbatch testified 
that Ms. Ofori frequently spoke of her nationality or her place of origin. 

Ms. Edstrom also testified about an incident that involved 
Ms. Ofori and another employee. Ms. Edstrom testified that in April, 
1979, Ms. Ofori telephoned another employee and accused the employee of 
being a racist and of trying to get Ms. Ofori into trouble because she 
is black. Ms. Edstrom testified that she met with Ms. Ofori on April 11, 
1979 to discuss this incident and to assure Ms. Ofori that she felt that 
her concerns about her job and about racism were ungrounded. Ms. Edstrom 
alleged that at this meeting Ms. Ofori indicated a concern that many of 
the employees at the CN Tower were racist. Ms. Edstrom's evidence was 
that she requested Ms. Ofori to report any specific incidents that might 
arise where she believed that she was being treated differently because 
of her race or colour. 

Ms. Penny Goldrick who investigated the complaint for the 
Commission also testified that a number of Ms. Ofori 's fellow employees 
had informed her that Ms. Ofori felt that, as a black African, she was 
superior to blacks from Canada or the West Indies. (Evidence 90) 

The incident that gave rise to the complaint herein arose on 
July 9, 1979. On that day, Ms. Ofori had been at school and she arrived 
for work at about 5:00 p.m., which was approximately one hour late. 
However, her supervisors did not disapprove as they were aware that she 
would occasionally be tardy when coming from school. When Ms. Ofori 
arrived at the cash register she was to operate that evening, she relieved 
another employee (Bill Kinaschuk) who had been awaiting her arrival. Mr. 
Kinaschuk had been on the cash register for about one hour and the evidence 
indicates there had been no sales while he was there. Ms. Ofori did not 
count the float when she relieved Mr. Kinaschuk. 



Each cash register had a cash float of $100 and when another 
employee commenced a shift the money was counted to ensure that the start- 
ing employee was left with the $100 float and that the remaining money 
in the cash register balanced with the total sales. At the end of each 
shift the money in the cash register was taken to a supervisor to be 
counted and checked against total sales and the float money. If all was 
in order, the supervisor then deposited the money. 

The evidence before me was that there was nothing abnormal 
in the operation of business at the CN Tower on July 9, 1979. At about 
7:00 p.m. one of the supervisors, Mike Hoffeldt, did a spot check of all 
the cashiers. He found that Ms. Ofori was over $7.61. Margaret Ofori 
finished her shift at 11:00 p.m. and removed the money from the cash 
register and gave it to Mr. Hoffeldt. After counting it, he informed her 
that her cash was $10.53 short. Mr. Hoffeldt was surprised at the 
fluctuation between his 7 o'clock balance' and -the final tally of Ms. 
Ofori 's cash. He .double-checked his figures to ensure* that he had not 
missed an item. jr ~ ■ ;i 

Mr. Hoffeldt testified that -while he may have made a mistake 
in his first float count of Ms. Ofori on July 9, 1979, it would be un- 
likely. He admitted that he could have made a mistake in his audit at 
the end of the shift, but doubts very much that that occurred. He 
also gave evidence that it is possible that there was an error in the 
float books since it is used merely as a guide and is not absolutely 
accurate. Mr. Hoffeldt also felt that it was possible that the money 
could have been dropped when, for example, the float was being counted. 
He also related one incident where an employee had found $10 around or 
under the cash register. After checking and rechecking this employee's 
float sheet it was discovered that there was a discrepancy between what 
he had written down on his float sheet and what should have been on his 
float sheet. This incident was never reported to Ms. Edstrom. When Mr. 
Hoffeldt was asked why it was not reported, he-said it was a completely 
different case than that of Ms. Ofori; 

Ms. Ofori testified that after her cash was checked she 
recalled that she had forgotten her two float jheets upstairs under the 

cash register. She asked another employee (Tae Hwang) to retrieve these 
sheets for her. Ms. Ofori did not return to her cash register on July 9, 
1979. This evidence was confirmed by Mr. Hoffeldt who testified that 
another employee went upstairs to get something which Ms. Ofori had for- 

On the morning of July 10, 1979 Ms. Edstrom was informed by 
Mr. Hoffeldt that Margaret Ofori had been $7.61 over at 7:00 p.m. and 
that at the end of the shift she was $10.53 short. Shortly thereafter, 
at about 10:00 a.m., another Cara Operations employee at the CN Tower, 
Gloria Jenkins, attended at Ms. Edstrom's office and showed her two $10 
bills that she had just found under her cash register while cleaning out 
the boxes and bags. She testified that on July 10, 1979 she commenced 
working at 10:00 a.m. at the cash register to which she was assigned. 
Ms. Jenkins proceeded to take all the tissue paper and other wrapping 
paper from underneath the cash register. As she removed some of the bags 
two $10 bills fell to the floor. She immediately informed Mr. Hoffeldt 
of the twenty dollars that she had found. She subsequently spoke to Ms. 
Edstrom. Mr. Hoffeldt testified that the two $10 bills were found in the 
area under the cash register, but he did not know exactly where. He 
stated that it was possible that no one would check or clean the area 
below the cash register for a few days. Once a store was closed no one 
was permitted into that area until the next shift began the next morning. 

Ms. Edstrom testified that she soon discovered that the cash 
register where the twenty dollars was found was the same location where 
Ms. Ofori had been working the previous night. She immediately commenced 
an investigation to determine the origin of the twenty dollars. She 
testified that she ascertained there had been no cash or float problems 
on July 9, 1979 and that Bill Kinaschuk had not operated the cash register 
prior to Ms. Ofori 's arrival. She interviewed Tae Hwang, who had been 
operating the second cash register in the same store during the night shift 
of July 9, 1979, and concluded that Mr. Hwang had not used the cash 
register for which Ms. Ofori was responsible. 

Ms. Edstrom testified that her investigation led her to believe 
that there was a connection between the two $10 bills found on the morning 


of July 10th and Ms. Ofori's shortage of approximately $18 on the evening 
of July 9, 1979. Ms. Edstrom contacted her supervisor, Ms. Herlihy, to 
discuss the matter. It was their joint decision that unless Ms. Ofori 
could present an acceptable explanation of the coincidence between the 
shortage and the found money that she should be dismissed from her 

On the morning of July 10, 1979 Ms. Ofori received a telephone 
call from Ms. Edstrom asking Ms. Ofori to meet with her as soon as possible 
at her office. Ms. Ofori coul d, not attend that day because she could not 
get a babysitter and she agreed to meet Ms. Edstrom. the following morning. 

On July 11, 1979 Ms. Ofori arrived at Ms. Edstrom's office 
around noon hour. The parties differ as to the content of this crucial 
discussion and unfortunately there were no witnesses, to the conversation 
as the door to Ms. Edstrom's office was closed. Ms. Ofori testified, that 
she was dismissed because of the two $10 bills ,that , had, been found under 
the cash register she had operated and Ms. Edstrom's . bel ief. that she had 
attempted to steal this money .from the company. Ms. Ofori testified that 
she had asked why she was being, accused of this attempted theft and that 
she had indicated that she had not operated her cash register alone and 
that several other employees t had been in the, same area during the evening 
in question. At the hearing, Mr. Hoffeldt confirmed that the cash register 
Ms. Ofori was operating on July 9, 1979 was about twenty feet away from 
another cash register operated by Tae Hwang. When Ms. Ofori went for her 
coffee break it was possible that Mr. Hwang could have operated Ms. Ofori's 
cash register. If an employee operates another employee's cash register 
he or she is instructed to draw a line on the "detail roll" in that register 
and indicate that he or she had operated the machine. In Ms. Ofori's 
case, Mr. Hoffeldt did not check the roll or tape on Ms. Ofori's cash 
register. Rather, Mr. Hoffeldt was informed that no one else had used 
Ms. Ofori's cash register. Ms., Ofori testified that in response to her 
questioning Ms. Edstrom stated: ,"No,,they can't do that, it's only 
Africans who can steal." (Evidence 25) .Ms. Ofori alleges that she started 
crying because she was very upset and left Ms. Edstrom's office to go to 
the head office of Cara Operations where she alleges that she was informed 


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that Ms. Edstrom would be spoken to about the problem. July 9, 1979 
was the last day that Ms. Ofori was employed by Cara Operations. Shortly 
thereafter she filed a complaint with the Ontario Human Rights Commission. 

Ms. Edstrom' s version of the final meeting between herself 
and Ms. Ofori differs considerably from that of the complainant. She 
testified that she pointed out to Ms. Ofori her $7 overage and $10 
shortage and asked Ms. Ofori for an explanation. Ms. Edstrom stated 
that she did not receive an explanation and that she then told Ms. Ofori 
about the finding of the two $10 bills underneath the cash register that 
she had been operating. Ms. Edstrom stated that she again did not receive 
any explanation from Ms. Ofori (Evidence 157). Ms. Edstrom's testimony, 
according to her notes that she made shortly after this meeting, was that 
Ms. Ofori was calm and that she accused other employees of stealing but 
that she did not give any specific incidents. 

Ms. Edstrom testified that as she did not receive any adequate 
explanation, she dismissed Ms. Ofori from her employment with Cara Opera- 
tions. Ms. Edstrom stated that Ms. Ofori reacted calmly to her dismissal 
and that she left the office, removed her uniform and gave her address 
where her final pay cheque could be mailed. Ms. Edstrom specifically 
denied that during the final interview she said that only Africans steal. 
(Evidence 159) She also specifically denied that she ever said anything 
to Ms. Ofori about her race or nationality from October, 1978 to July, 1979. 
(Evidence 159) 

Mr. Dennis Cook, Employment Administrator in the Employee 
Relations Department of Cara Operations Limited, stated that he was informed 
that Ms. Ofori had attended at the head office of Cara Operations in Toronto 
on the day that she was terminated and had been very upset and crying. 
Mr. Cook had been away on the date of her termination and did not partici- 
pate in the decision made by Ms. Herlihy and Ms. Edstrom to terminate 
Ms. Ofori. Mr. Cook contacted Ms. Ofori by telephone shortly after her 
termination and discussed her concerns about her firing with her. He states 
that he asked Ms. Ofori if Ms. Edstrom had done or said anything to indicate 
that she didn't like Ms. Ofori. Mr. Cook testified that his notes indicate 

- n - 

that Ms. Ofori stated that Ms. Edstrom was nice to her although some 
of the employees at the CN Tower complained that Ms. Edstrom screamed 
at them (Evidence 334). Mr. Cook al so'testified that his notes of his 
conversation with Ms. Ofori indicate that Ms .' Ofori ' said to him that 
"I'm a very, very nice person and I don't understand why she fired me 
for one (1) mistake." (Evidence 334) Mr. Cook stated on cross- 
examination that while he might have personally handled the situation 
with Ms. Ofori differently thanit had been handled by Ms. Edstrom and 
Ms. Herlihy, he had no doubt that Ms. Ofori was terminated because of 
cash mishandl ing. 

Ms. Penny Goldrick investigated Ms. Ofori 's complaint on 
behalf of the Ontario Human Rights Commission. Ms. Goldrick conducted 
what she indicated was a regular investigation pursuant to the provisions 
of s.14 of the Ontario Human Rights ' Code.' 1 ' 1 

In the course of this investigation ' she interviewed Ms. Ofori, 
Ms. Edstrom and various other employees of the respondent, Cara Operations. 
At the interview with Ms. Edstrom and Dennis Cook, Ms. Goldrick was told 
by Ms. Edstrom that Ms. Ofori had been' asked to' explain the two $10 bills 
under her cash register and the cash discrepancy. When Ms; Ofori did not 
offer any explanation she was told by Ms. Edstrom that her employment was 
terminated. Ms. Edstrom denied making any reference to the fact that Ms. 
Ofori was African. This was consistent with' her testimony at the hearing. 
Ms. Goldrick noted during the investigation that although other blacks 
were employed by the company none of them were black Africans. She also 
had occasion to examine the company's record of cash discrepancies which 
revealed that it was not unusual for cashier to be over or under at the 
end of their shift for a variety of reasons , including the fluctuating 
rate on the American dollar and the failure to ring in sales on occasion; 
however, Ms. Edstrom had never terminated any other employee while she was 
the manager of Cara Operations atthe CN Tower; Mr. Hoffeldt, in his 
testimony at the hearing, cited several instances from the "Blue Book" 
(Exhibit 4) where other employees were short up to $25 during 1979. The 
employees responsible for some of the shortages would be spoken to, but no 
employees were dismissed as a result of the shortages in 1979. 



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Dennis Cook informed Ms. Goldrick that Ms. Edstrom and Ms. 
Herlihy believed that they were dealing with a case of theft or of 
possible theft, but that they had never directly accused Ms. Ofori of 

Ms. Goldrick learned that there had been some minor and un- 
related problems with Ms. Ofori' s employment in respect of her ability 
to get along with some of the other employees. Ms. Edstrom had indicated 
to Ms. Goldrick that she considered Ms. Ofori to be good with customers 
and that generally her performance on the job was fine. Ms. Edstrom 
was emphatic in her discussion with Ms. Goldrick that Ms. Ofori's termin- 
ation occurred solely because the two $10 bills had been found under Ms. 
Ofori's cash register the morning after she had been short about $18, and 
because she could not offer any explanation with respect to these events. 
Ms. Edstrom indicated that Ms. Ofori's dismissal was not based on any 
incidents previous to July 9, 1979. 

Ms. Goldrick testified that she interviewed eleven other 
persons connected with the incident at the CN Tower in July, 1979. Most 
of these persons were fellow employees of Ms. Ofori. These fellow employees 
stated that they had no reason to believe that Ms. Ofori would steal. 
Many of those interviewed told Ms. Goldrick that there were other cashiers 
whom they might suspect but that they perceived Ms. Ofori to be an honest 

Ms. Goldrick further testified that those individuals she 
interviewed did not feel that Ms. Ofori had been dismissed because of 
discrimination nor did they believe that Ms. Edstrom would have made a 
remark that "only Africans steal" (Evidence 86-7). 




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Summary of Facts and Conclusion 

There is some doubt in my mind as to whether Ms. Ofori was 
properly dismissed from her employment with Cara Operations Limited at 
the CN Tower. The evidence does not satisfy me that Ms. Ofori was 
attempting to steal $20 from her employer of more than two years. There 
were undoubtedly many easier opportunities for Ms. Ofori to have taken 
a relatively small amount of money. She could have hidden the money on 
per person or in the pockets of her uniform on the night of July 9, 1979. 
It is significant in this regard that she did not return herself to the 
area where her cash register was located but instead requested another 
employee to pick up her float sheets. There is the possibility that 
some other employee may have accidentally or intentionally put the $20 
beneath the cash register where Ms. Ofori worked her last shift. All of 
these items might be relevant if we were here concerned with a civil 
action for wrongful dismissal., But in these proceedings weare concerned 
only with conduct contrary to the Ontario Human Rights Code. For the 
purpose of allegations under the Code there seem to be three relevant 
aspects to the case. 

First, there is Ms. Ofori 's allegation that Ms.. Edstrom said 
that she did not think she could work with her. This statement is denied 
by Ms. Edstrom and it is not corroborated. As well, there is the 
evidence of Ms. Ofori that she was asked by Ms. Edstrom and her husband 
where she came from. Such questioning is denied by Ms. Edstrom and Ms. 
Ofori on cross-examination acknowledged that she told the Edstroms that 
she was not born in Germany but rather in Africa. I find that I cannot 
accept that this incident indicated that Ms. Edstrom was prejudiced against 
Africans . 

I cannot attribute any discrimination to Ms. Edstrom or to 
Cara Operations Limited on the basis of these alleged incidents. I rather 
find that they confirm the respondent's position that Ms. Ofori was a 
person who was highly sensitive, particularly with respect to colour, 
nationality and place of origin. 

- 14 - 

Secondly, there was evidence given with respect to several 
incidents involving Ms. Ofori in confrontations or discussions with 
other employees about their racial attitudes and personal demeanor. 
One incident was described by Ms. Edstrom in hearsay evidence. But 
ignoring the situation related by Ms. Edstrom, I do accept the evidence 
of Theresa McGlenning and Judy Cumberbatch that Ms. Ofori had involved 
them in discussions which might be characterized as "black consciousness 
raising" in which she was critical of blacks from the western hemisphere 
who had adopted a western life style and in the process had failed, in 
her opinion, to retain their African heritage. These witnesses confirm 
that Ms. Ofori was an honest worker while employed at the CN Tower, but 
one whose strong concern with the retention of her national and racial 
identity intruded upon her relationships with her fellow employees. 

Thirdly, there are the facts surrounding the firing of Ms. 
Ofori by Cara Operations Limited. The only specific evidence led to show 
discrimination is the allegation that Ms. Edstrom told Ms. Ofori that 
only Africans steal, at the time that she dismissed her. This statement 
is denied by Ms. Edstrom and is not corroborated by any other witnesses. 
No evidence was called by the Human Rights Commission to indicate that 
this remark was repeated to any other individuals by Ms. Ofori. I accept 
the evidence of Dennis Cook and find him to be a highly credible and 
forthright witness. He testified that he made notes of a telephone call 
with Ms. Ofori shortly after her dismissal in which she made no mention 
of this alleged remark. On the contrary, she stated that she had had no 
problems with Ms. Edstrom. I find Mr. Cook to have been very frank in his 
testimony to the tribunal and when in conflict with Ms. Ofori, I accept 
hsi recollection of the events of July, 1979. 

I have little doubt that Ms. Ofori was terribly shocked and 
hurt by her dismissal by Cara Operations. I also have little doubt that 
she honestly perceived her dismissal to be on the basis of her race and 
nationality. It is not in my power to determine whether she was wrong- 
fully dismissed but I must add that I do feel that Ms. Edstrom and Ms. 
Herlihy, although acting in what they considered to be the company's best 



- 15 - 

interests, were rather harsh in their treatment of Ms. Ofori . I am 
dismayed that an employee of some two years standing would be dismissed 
on the basis of one incident, that is, Ms. Ofori' s inability to explain 
the coincidence of Ms. Ofori's shortage of approximately $18 and the 
finding of $20 near her cash register. If this tribunal had the juris- 
diction to order reinstatement of Ms. Ofori, I would have seriously con- 
sidered doing so as I believe that the evidence is not conclusive either 
that Ms. Ofori stole or attempted to steal from the respondent. I would 
have thought that in light of Ms. Ofori's good work record that this 
incident warranted a reprimand and a warning rather than dismissal. 

Despite my reservations about the legitimacy of the firing 
of Ms. Ofori and my acceptance that Ms. Ofori believed her dismissal was 
related to her nationality and race, I cannot find that the respondents 
have contravened the Human Rights Code. 

The leading case on this subject is Regina v- Bushnell Communi- 
cations Ltd. , et al (1974) 4 O.R. (2d) 288. -In that case. the accused 
corporation was charged under s. 110(3) of the Canada Labour Code, R.S.C. 
1970, c. L-l , making it an offence to "refuse — to continue to employ 
any person ... because the person is a member of a trade union". There 
was evidence of acrimony and disagreement among a number of employees and 
especially with the subsequently dismissed sports broadcaster, whose dis- 
missal led to the charge being laid. Indeed it would not have been sur- 
prising had the company decided to dismiss him at some point. However, 
the day before the dismissal, a letter was delivered by a union representa- 
tive to the executive vice-president of the company, advising him that the 
employee was a member of the union. In other words, the notification of 
union membership was followed the next day by dismissal. The court of 
appeal, in upholding the conviction of the employer stated (at p. 290), 
"... union membership must be a. proximate cause for dismissal, but it may 
be present with other proximate causes. " [Underlining, mine.] I construe 
these words to mean that union. membership 'must have played a material role, 
though not the sole or even dominant role i in the decision to dismiss. 
Given the sequence of events in the Bushnell case it is not all surprising 
that union membership was so viewed by the court. 

- 16 - 

Another way of stating the test might be to ask, "Would the 
employee have been dismissed at that time, had the impugned proximate 
cause not been present?" In the Bushnel 1 case, it is hard to imagine 
the dismissal occurring just by coincidence the day after notice was 
received of the employee's membership in the union. 

The equivalent questions asked in the present case would be, 
"Was Ms. Ofori's race or colour a proximate cause in her dismissal?", 
and "Would Ms. Ofori have been dismissed at that time had she been a 
white employee?". In my view, the answer to the first question is "No", 
that Ms. Ofori's colour and nationality were not a proximate cause. She 
was dismissed because the particular management personnel believed that 
her lack of explanation confirmed their suspicions that she had attempted 
to steal $20 on the evening when there was a fluctuation in her cash 
amounting to approximately an $18 shortage. Although Ms. Ofori perhaps 
rationalized the incident as one involving discrimination there is in my 
opinion no basis for attributing to Cara Operations Limited that discrim- 
ination was a proximate cause of Ms. Ofori's dismissal. It follows that 
in all likelihood Ms. Ofori would have been dismissed if she had been a 
white person in the same circumstances and on the same occasion. I do 
not believe that Ms. Ofori's being a black African played any role in the 
decision by the employees of Cara Operations to dismiss her. 

Accordingly, I do not find that Cara Operations Limited 
violated s.4(b) of the Ontario Human Rights Code in dismissing Ms. Margaret 
Ofori . 

For the reasons set out above, the complaint is dismissed. 


Dated at Toronto, Ontario 

March 26, 1981 Frederick H. Zemans, Chairman 

Board of Inquiry